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2011 DIGILAW 174 (GUJ)

Ratilal Chhotalal Nayaka v. State of Gujarat

2011-03-08

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : R.M. Chhaya, J. The present appeal is filed against judgment and order passed by learned Additional Sessions Judge, Fast Track Court No.3, Vadodara on 25.05.2004 in Sessions Case No.230 of 2003, convicting the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 ('the IPC' for short) and sentencing him to imprisonment for life. 2. The case of the prosecution is that on 22.08.2003 at about 7:00 p.m. the appellant-accused pushed the deceased-Bhailalbhai Bamanbhai Nayaka (“the deceased” for short) from the cliff into river-Ashwin and the appellant-accused also thereafter throttled the deceased repeatedly in the water and thereby caused death of the deceased by strangulation. That while the appellant-accused committed this act, Rameshbhai Janabhai Nayka (PW-2), was sitting at a distance of about 100 mtrs. attending his natural call and on seeing the appellant-accused committing this act, he immediately informed about the said incident to Gordhanbhai, Narayanbhai and Govindbhai. 3. Next day i.e. on 23.08.2003 PW-2 lodged an F.I.R. with Nasvadi Police Station, which came to be registered as C.R. No.I-52 of 2003 for the offence under Sections 302 and 504 of the IPC. The police thereafter initiated investigation and the appellant-accused came to be arrested on 31.08.2003. On completion of the investigation, police submitted charge-sheet against the accused-appellant for the aforesaid offences. 4. Learned Judicial Magistrate, First Class, Sankheda on receipt of such charge-sheet, so submitted by the police, committed the case to the Court of learned Sessions Judge, Vadodara as the case was being exclusively triable by the Court of Sessions and the same was registered as Sessions Case No.230 of 2003. 5. The learned Judge, on appearance of the accused-appellant and on perusal of the materials available on record, including the police papers as well as also upon hearing the learned counsel for the parties, framed charges below Exh. 4 against the accused under Sections 302 and 504 of the IPC. The entire charges were read over to the accused-appellant to which he pleaded not guilty and claimed to be tried. 6. The trial court proceeded with the trial and after considering all evidence led by the prosecution, came to the conclusion that the prosecution has successfully established the charges levelled against the present accused-appellant and specifically believed the case of the prosecution, which is based on chain of circumstances, being complete and uninterrupted. 6. The trial court proceeded with the trial and after considering all evidence led by the prosecution, came to the conclusion that the prosecution has successfully established the charges levelled against the present accused-appellant and specifically believed the case of the prosecution, which is based on chain of circumstances, being complete and uninterrupted. Relying upon the same, the learned trial Judge reached to the conclusion that the offences alleged in the present case were duly established against the accused-appellant. The learned trial Judge, therefore, had recorded conviction of the accused-appellant, as aforesaid, by the impugned judgment and order dated 25.05.2004. Hence, the present appeal. 7. Heard Ms. Trusha H. Mehta, learned advocate appearing on behalf of the accused-appellant, while the respondent-State has been represented by learned A.P.P. Mr. D.C. Sejpal. 8. Learned advocate Ms. Trusha Mehta for the appellant-accused has invited our attention to the evidence of solitary eye-witness, PW-2, as well as oral testimony of PW-3, Gordhanbhai Bamanbhai, and PW-1 Dr. Jagdish Chellapan, who performed the postmortem of the deceased. She has further contended that PW-2, the solitary witness, is the cousin of the deceased and, therefore, he could be said a 'chance witness'. She has further pointed out that the very presence of the said eye-witness (PW-2) at the wee hours, at the place of occurrence of the alleged offence is not only doubtful but an afterthought. She has further pointed out that the F.I.R. was also lodged after many hours and no explanation was rendered for such delay. It is further contended that even though it was alleged that the brother of the deceased (PW-3) and the sarpanch of the village were informed by PW-2 immediately after the alleged incident and that they came to the scene of offence, they did not prefer to inform anyone about the alleged incident and did not even remove the dead body. Ms. Mehta has, therefore, contended that the accused has been falsely implicated in the alleged offence and the prosecution has not been able to establish the guilt of the accused. She has further contended that even looking to the physical condition of the accused, more particularly having disability in both hands, it would not have been possible for the accused to commit such an offence by strangulation as alleged and, therefore, urged that the present appeal deserves to be allowed. 9. As against this, learned A.P.P. Mr. She has further contended that even looking to the physical condition of the accused, more particularly having disability in both hands, it would not have been possible for the accused to commit such an offence by strangulation as alleged and, therefore, urged that the present appeal deserves to be allowed. 9. As against this, learned A.P.P. Mr. Sejpal, has opposed the present appeal and has supported the impugned judgment and order passed by the learned trial Court and contended that the learned trial Court was perfectly justified in its judgment of conviction and sentence looking to the evidence on record of the case. He has submitted that the oral testimony of PW-2, who is the first informant, as well as PW-3 is trustworthy and is rightly believed by the learned trial Court. He has further pointed out that the medical evidence as well as the fact that mucus and blood stains were found from the shirt of the accused clearly establish the fact that the charges levelled against the appellant-accused are amply corroborated by the prosecution and that the learned trial Court has rightly convicted the accused and, therefore, urged that the appeal deserves to be dismissed. 10. We have examined the record and proceedings in the context of the rival submissions. Upon reading oral testimony of PW-2, we find that at about 7:00 p.m. in the evening, PW-2 had gone to attend his natural call and at that moment he found the accused and the deceased grabbling near the cliff of river Ashwin. We also noticed that PW-2 has further narrated that the accused pushed the deceased from the cliff into river Ashwin and thereafter he himself also plunged into the river and, therefore, when PW-2 went near the river he saw that the appellant-accused was throttling the deceased and PW-2 could identify the accused. We also find that PW-2 thereafter immediately went to the house of the deceased and informed about the said incident to PW-3 as well as, Narayanbhai and Govindbhai. Upon reading the deposition of PW-2, we also find that after all four of them reached the river side they did not take the deceased to the hospital till 10 a.m. on the next day and they even did not take the deceased to his house. 10.1. Upon reading the deposition of PW-2, we also find that after all four of them reached the river side they did not take the deceased to the hospital till 10 a.m. on the next day and they even did not take the deceased to his house. 10.1. Upon reading the oral testimony of PW-3 as well as PW-9, Pratap Bhulabhai Bariya, we have noticed that PW-3 has stated in his deposition that as it was raining very heavily throughout the night, the dead body of the deceased was kept at the river bed. PW-3 has also stated that because of the one earlier incident, which occurred before two years, in order to take revenge, the accused has committed the present offence. 10.2. Similarly, upon reading the oral testimony of PW-9, who happens to be husband of the sarpanch of the village, we find that PW-9 has stated in his deposition that there were no lights and it was raining heavily all throughout night and he has also stated that the brother of the accused-appellant had filed a complaint against the first informant and his other relatives. He has also categorically stated that he does not possess any personal information about the incident in question and has also stated that he has not seen the occurrence with his own eyes. 10.3. Except the oral testimony of solitary eyewitness (PW-2), no other cogent piece of evidence has been adduced by the prosecution. 11. Upon further reading the oral testimony of PW- 2, we find that it is not safe to order conviction solely on oral testimony of such solitary eye-witness, who is also a 'chance witness' and closely related to the deceased. The prosecution has not been able to corroborate with any further piece of evidence and the medical evidence also does not render any further corroboration. 12. It has come on record that it was raining heavily on the date of incident and it is an admitted position that the dead body was pulled out from the river and, therefore, the presence of mucus or blood stains on the bush shirt of the deceased would not carry the case of the prosecution any further. Similarly, there is no evidence on record worth the name to connect the appellant-accused with the present crime on the basis of 'last seen together'. 13. Mr. Similarly, there is no evidence on record worth the name to connect the appellant-accused with the present crime on the basis of 'last seen together'. 13. Mr. Sejpal has raised a contention that blood stains have also been found upon the shirt of the deceased. The fact remains that the accused was arrested after a week i.e. on 31.08.2003 and it is the case of the prosecution that after pushing the deceased from the cliff of the river the appellant-accused himself plunged into the river and throttled the deceased and repeatedly had tried to submerge the corpus of the deceased. In addition to that the evidence in the form of serological report indicates that the prosecution has not taken/collected any blood sample of the accused. In view of the fact that, according to the case of the prosecution, the accused has also plunged himself into the river, rules out any possibility of blood stains, coupled with the fact that the evidence on record clearly reveals that the body of the deceased was taken out from the river and was completely wet and, therefore, it cannot be gainsaid that the blood stains found on the shirt of the accused would lead to a circumstance spelling out his presence and commission of crime as projected by the prosecution. 14. The sum total of the above discussion would be that the oral testimony of PW-2, without any corroboration as aforesaid, creates cloud of doubt upon the veracity of such a version, benefit of which would naturally go to the accused. In addition to it, the overall circumstances and more particularly, the circumstance that it is the case of the prosecution that it was raining heavily also creates doubt about the evidence in the form of serological report, as discussed herein above. 15. For the foregoing reasons, we allow the aforesaid appeal and acquit the appellant-accused by giving him 'benefit of doubt'. The impugned judgment and order dated 25.05.2004, recording conviction and sentence of the appellant by learned Additional Sessions Judge, Fast Track Court No.3, Vadodara in Sessions Case No.230 of 2003, is hereby set aside. The appellant is acquitted from the charges levelled against him. The accused-appellant Ratilal Chhotalal Nayaka be set at liberty forthwith, if not required in any other case. Appeal allowed.